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Shyam Prasad Mishra & Another v. Vijay Pratap Singh & Others - FIRST APPEAL No. 740 of 2005 [2005] RD-AH 4007 (4 October 2005)


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This appeal is directed against the judgment and decree dated 21.9.2005 passed by Civil Judge  senior Division Allahabad dismissing the suit filed by the plaintiff under  Order 7 Rule 11  of Code of  Civil Procedure ( for short the  C.P.C.) on the ground that plaint failed to disclose any cause of action.

The facts are that defendant/ respondent no. 2 who was the owner of house no.79 H.I.G., Phase- II Awas Vikas Parishad Jhunsi Allahabad transferred the same in favour of defendant/ respondent no. 1 by means of registered sale deed dated 19.11.2004. The appellants who were the tenants of the said premises filed Original Suit No. 1040 of 2004 seeking a decree of declaration to declare the sale deed in favour of defendant/respondent no.1 as void and not binding on the plaintiff and a further direction to respondent no. 2 to execute a sale deed of the house in question in favour of the plaintiffs after accepting Rs. 5.50lakhs as sale consideration.

The claim made by the plaintiff in the suit was based on the right of   Pre-emption. It was alleged that plaintiff who were tenants of the house in question approached the defendant no. 2 for executing the sale deed of the said house in their favour but he, did not pay any heed to it and ignoring their claim, executed the sale deed in favour of defendant /respondent no.1.

The suit was resisted by defendant/respondent no. 1 by filing an application to dismiss the same under Order 7 Rule 11 C.P.C. on the ground that tenant has no right of Pre-emption and as such there is no cause of action.

The trial court allowed the application and dismissed the suit under Order 7 Rule 11 CPC.  It was held that plaintiff being tenants of the house in question have no right of Pre-emption.

It has been vehemently urged by the learned counsel for the appellant that a right of Pre-emption by custom is prevalent amongst Hindus and thus the plaintiffs have a customary rights of Pre-emption which is enforceable by a Civil Suit and the trial court has wrongly and illegally dismissed the same.  It was further urged that the trial court without providing any opportunity to the plaintiff/appellants to adduce evidence to establish that right of Pre-emption by way of custom is prevalent  in the city of Allahabad, has wrongly dismiss the suit.

Pre-emption creates a limitation or disability upon an owner of a property in the sense it restricts the owner's unfettered right to sell the property to a stranger without giving an opportunity to his co-sharer or neighbour to purchase it in the first instance.  The Hon'ble Apex Court tracing the origin and development of law of Pre-emption in India has observed in the case of Sri Oudh Behari Singh Vs. Gajadhar Jaipuriya and other  AIR 1954 SC 417 that law of  Pre-emption was introduced in this country by Muhammadans.  During the period of  Mughal Emperors, the law of Pre-emption was administered as a rule of common law of the land in those parts of  the country which came under the domination of the Muhammadan  Rulers. In the course of time, the Hindus came to adopt Pre-emption as a  custom for reasons of convenience  and the custom is to be found in  Provinces  like Bihar and Gujrat which had once been integral part of Muhammadan empire.

Before  entering into the controversy as to whether right of Pre-emption  by custom is prevalent amongst the Hindus and there exists a local custom of Pre-emption in the city of Allahabad, it would be appropriate to consider the question who can exercise the  right of Pre-emption or  in  other words whether a tenant can claim right of  Pre-emption against the owner of the property.  During the pre-Constitution days the right of  Pre-emption in some Provinces and cities was followed as a custom and in some places it was embodied in statute  passed by  the Legislature  such as Reewa Estate  Pre-emption Act 1946 and Punjab Pre-emption Act 1930. Irrespective of the fact whether it was by a custom or under a codified law,  the right  of  Pre-emption could be exercised only  either by a co-sharer or by  a person on account of vicinage.

The appellants are only tenants in the house in dispute. The counsel for the appellants has failed to place before us any law either by usage or custom or under statute, which gives right of Pre-emption to a tenant.

The plaintiff/appellant cannot claim right of Pre-emption in their capacity as tenants of the house in question. Thus the plaintiff/ appellants having no enforceable right, have no cause of action and the suit filed by them has rightly been dismissed by the court below exercising power conferred by order 7 Rule 11 C.P.C. It is well settled that irresponsible, frivolous and malafide litigation must not be allowed to continue and must be weeded out at the earliest. Hon'ble Apex Court in the case of T. Arvindandam Vs.  T.V.  Satyapal reported in AIR 1977 SC 2421 have observed that an irresponsible litigation must be nipped in the bud. To quote;

" The learned Munsif must remember that if on a meaningful- not formal- reading of the plaint, it is manifestly vexatious, and merit less, in the sense of not disclosing a clear right to sue,  he should exercise his power under O. VII R. 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searching under order O.X. CPC.  An activist judge is the answer to irresponsible lawsuits. The trial court would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest state".

Since in the present case the plaintiff/ appellant had no enforceable right of Pre-emption against the defendants as such there was no cause of action and the plaint has rightly been dismissed by the court below under Order 7 Rule 11 CPC.

At the end another submission was made by the appellants that this being regular First Appeal under Section 96 CPC, based  on facts and law both, is liable to be admitted, as a matter of right by way of convention without any hearing and at this stage the matter should be heard only on the question of grant or refusal of the interim order.

The above argument has been advanced by the learned counsel for the appellant in total ignorance of the provision of Order 41 Rule 11  CPC which confers  power on the appellate court to dismiss the appeal  even without sending  notice to the lower court. It reads as under;

Power to dismiss appeal without sending notice to lower Court-(1) The appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal.

(2)- If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.

(3)- The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.

(4)- Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.

A bare perusal of reading of the aforesaid provision make it clear that First Appeal filed under Section 96 CPC is subject to order 41 rule 11  CPC and can be dismissed by the  court after hearing the appellants or his pleader. It clearly means that an appeal under Section 96 CPC is not to be admitted as a matter of right or even under convention unless court is satisfied about the merits of the Appeal.

Order 41Rule 11 has been enacted by the Legislature for the appellate Court for the same purpose and object as order 7 Rule 11 is for the trial court. Thus an appeal filed under Section 96 C.P.C. requires hearing under Order 41 Rule 11 C.P.C. by the appellate court to satisfy itself about the merits of the same.  The principle of law laid down by the Hon'ble Apex Court in the case of T. Arvindandam  ( supra ) with regard to frivolous litigations shall apply with equal force to the hearing of an appeal under Order 41 Rule 11  C.P.C. Thus it is the duty of every court examine the appeal at the state of order 41 Rule 11 C.P.C. and to dismiss the same in exercise of power conferred by the said provision, if it lacks merit and does not deserve  admission. No alleged convention or practice can be allowed to over ride the mandatory provision of the statute.  Accepting the argument of the learned counsel for the appellant would mean nullifying the mandate of order 41 Rule 11 C.P.C.

In view of the above even this argument raised by the learned counsel for the appellant to secure admission of appeal and consequently notice to the respondent lacks merits and is not liable to be accepted.

From the aforesaid discussion it is clear that  appeal has no force and does not deserve admission and is hereby dismissed.


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